The Effectiveness of Environmental Laws in Preventing Transboundary Pollution from Oil Drilling in the Arctic
Sic utere tuo ut alienum non laedas. At the heart of international law is the balance between a state’s right to extract resources within its sovereign boundaries and its obligation to prevent harm to other states. Recent research suggests that offshore hydrocarbon extraction within a sovereign state’s exclusive economic zone can cause transboundary pollution. The Arctic Circle is estimated to contain over 90 billion barrels of oil, 17 trillion cubic feet of undiscovered gas, and 44 billion barrels of natural gas liquids, comprising significant portions of the world’s undiscovered hydrocarbon resources. Roughly 84% of undiscovered Arctic resources are expected to be found offshore. In 2018, the United States Congress has opened parts of the Arctic to oil and gas drilling and repealed the offshore drilling safety regulations that were put in place after the Deepwater Horizon spill. Other countries, including Norway and Russia, have similarly encouraged arctic oil exploration. Yet, existing equipment is simply inadequate to deal with pollution accidents that will inevitably occur as such explorations continue.
Despite the potential increases in drilling in the coming years, the Arctic does not have a coherent and effective legal regime to handle the threat posed by oil pollution. It is therefore necessary and timely to assess the effectiveness of international environmental law in protecting Arctic biodiversity against oil pollution. This Note assesses the effectiveness of the current environmental regime in the Arctic along three axes: participation & liability, scientific, and cooperative. This Note argues that, despite their failure to meet participatory and liability standards, existing laws may be effective in protecting Arctic biodiversity against oil pollution if new implementation agreements are adopted. Adequate protection for Arctic biodiversity also depends on better operational practices and compliance with existing regulations.9 As such, this Note recommends ways to improve the efficacy of arctic agreements.
Part II provides background on the Arctic environment, the possible impacts of oil pollution, and the current legal authority governing resource exploitation in the Arctic. Part III introduces and applies a theoretical framework for assessing efficacy of existing authorities by focusing on whether they modify state actors’ utilities, whether they facilitate learning, and whether they facilitate coordination. Part IV recommends possible ways to improve the efficacy of the Arctic regime including an umbrella Transboundary Marine Pollution Treaty, an Arctic Insurance Agreement, and standardized Marine Protected Areas. Finally, Part V summarizes the importance of U.S. leadership in proposed solutions.
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- August 6, 2020